Citation NR: 9726287
Decision Date: 07/30/97 Archive Date: 08/06/97
DOCKET NO. 94-45 243 ) DATE
)
)
Received from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Columbia, South Carolina
THE ISSUES
1. Entitlement to service connection for defective hearing,
for purposes of accrued benefits.
2. Entitlement to service connection for a right ear
disorder, for purposes of accrued benefits.
3. Entitlement to service connection for hypertension, for
purposes of accrued benefits.
4. Entitlement to service connection for the cause of the
veteran’s death.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
David A. Brenningmeyer, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1948 to May 1952.
By a decision entered on February 19, 1993, the RO in
Buffalo, New York, denied his claims of entitlement to
service connection for defective hearing, a right ear
disorder, and hypertension. A Notice of Disagreement with
respect to that decision was received on March 19, 1993, a
Statement of the Case was issued on April 23, 1993, and his
Substantive Appeal with regard to those issues was received
on May 12, 1993. Unfortunately, however, he died on January
[redacted] 1994, during the pendency of his appeal. (His claims of
entitlement to service connection for defective hearing, a
right ear disorder, and hypertension are the subject of a
separate decision.)
Subsequently, in April 1994, the veteran’s widow filed a
claim for dependency and indemnity compensation (DIC), death
pension, and accrued benefits. The RO in Columbia, South
Carolina, denied service connection for the cause of the
veteran’s death by a decision entered on May 31, 1994, and
sent her a letter, dated on August 16, 1994, indicating that
her claims for DIC, death pension, and accrued benefits had
been denied. A copy of a letter to her United States
Representative, Bill Paxon, accepted as a Notice of
Disagreement with respect to her claims for DIC and accrued
benefits, was received by VA that same month, and she was
issued a Statement of the Case on September 6, 1994. Her
Substantive Appeal with regard to these issues was received
on October 24, 1994.
In its decision in Jones v. Brown, 8 Vet.App. 558 (1996), the
United States Court of Veterans Appeals held, inter alia,
that a claim for accrued benefits can be well-grounded even
in cases when there are no claims pending at the time of a
veteran’s death. An appeal of that decision is now pending
at the United States Court of Appeals for the Federal Circuit
and, as a result, the Director of the VA Compensation and
Pension Service has temporarily suspended adjudication of
accrued benefits cases in situations where the claims
asserted were not pending at the time of the veteran’s death.
Because the appellant’s claims in the present case are
predicated on claims that were pending at the time of the
veteran’s death, they are not affected by the suspension.
Consequently, the Board will proceed with its consideration
of the present appeal.
By a letter dated in May 1994, the RO notified the appellant
that her claim for non-service-connected burial allowance had
been denied. She subsequently expressed disagreement with
that decision in her Substantive Appeal, dated in October
1994, but has not yet been issued a Statement of the Case
with regard to that issue. The matter is therefore referred
to the RO for appropriate action.
In a letter to her United States Representative, dated in
August 1994, the appellant raised the issue of entitlement to
payment or reimbursement for certain of the veteran’s medical
expenses. It is unclear on the present record whether that
issue has been addressed by the proper VA authorities. This
matter is also referred to the RO for further investigation
and appropriate action.
REMAND
Title 38 U.S.C.A. § 5121(a) (West 1991 & Supp. 1997)
provides, in pertinent part, that a veteran’s surviving
spouse may receive “accrued benefits” consisting of up to two
years of due, but unpaid, benefits to which the veteran “was
entitled at death under existing ratings or decisions, or
those based on evidence in the file at date of death . . . .”
See 38 C.F.R. § 3.1000 (1996) (to the same effect). Given
VA’s definition of “evidence in the file at date of death,”
evidence considered in adjudicating a claim for accrued
benefits may include service department records, reports of
examination, hospitalization, or treatment performed or
authorized by VA, or reports of autopsy made by VA on the
date of death, even though such reports or records are not
reduced to writing or are not physically placed in the file
until after death. See VA Manual M21-1, Part VI, para. 5.06;
Hayes v. Brown, 4 Vet.App. 353, 358-59 (1993).
VA regulations in effect at the time the appellant filed her
claim further provided that hospital and examination reports
from military, state, county, municipal, or other government
hospitals or recognized private institutions may, under
certain circumstances, be deemed to be included in the term
“Department of Veterans Affairs examination.” See 38 C.F.R.
§ 3.327(b)(1) (1994) (subsequently amended, effective
November 2, 1994, by 60 Fed. Reg. 27,409 (1995)); Hayes, 4
Vet.App. at 360-61. See also Karnas v. Derwinski, 1
Vet.App. 308, 312-13 (1991) (where a regulation changes after
a claim has been filed, but before the administrative appeal
process has been concluded, the version most favorable to the
appellant will apply unless provided otherwise). VA Manual
provisions also provided that evidence received after the
veteran’s death could be considered for the purpose of
verifying or corroborating evidence “in file” at death, VA
Manual M21-1, Part VI, para. 5.27(b), and indicated that a
claimant could, under some circumstances, submit additional
evidence to “confirm the prima facie evidence in file at the
date of death . . . .” VA Manual M21-1, para. 27.08(b).
Under 38 U.S.C.A. §§ 5103(a) and 5121(c) (West 1991), VA has
a duty to notify claimants of the evidence necessary to
complete their applications for benefits where their
applications are incomplete. In the context of Section
5103(a), the United States Court of Veterans Appeals has held
that this duty includes a duty to notify claimants of the
need to provide certain evidence where the claimant has made
statements indicating the existence of such evidence that
would, if true, make the claim plausible. See Robinette v.
Brown, 8 Vet.App. 69, 77-80 (1995). A generalized notice to
the claimant to the effect that she need submit “evidence
showing that the condition was incurred in or aggravated by
military service” is insufficient to satisfy the duty under
Section 5103(a). Id. at 80.
In the present case, the appellant contends, in essence, that
she is entitled to accrued benefits because the veteran
suffered from defective hearing, a right ear disorder, and
hypertension at the time of his death, and these conditions
were either incurred in, or aggravated by, his period of
active military service. She also contends that his death
from ventricular fibrillation, myocardial infarction, and
coronary artery disease was service-related.
In a statement received in March 1994, the appellant
indicated that her husband had been treated by a private
physician, Dr. Andaloro, for hypertension beginning in 1952,
and that she had received a letter from that physician
shortly before the veteran’s death. She also indicated that
she had received a letter from a Dr. Shields stating, in
essence, that the veteran had had mastoid surgery “many years
ago” and that that condition had been aggravated by his
military service. She further suggested in her October 1994
Substantive Appeal that care providers at the VA facility in
Canandaigua, New York, told her that the veteran’s
cardiovascular problems “should be . . . considered service[-
]connected.”
When the veteran testified at a hearing held at the RO in
August 1993, he indicated, among other things, that he had
been examined in conjunction with his position with the New
York State Police soon after his discharge from service and
that problems with elevated blood pressure were then
identified. He also indicated that he was continuing to
undergo treatment at a VA facility for difficulties
associated with his heart and ear. He testified that he had
been treated by Drs. Hare and Trott prior to service, but
indicated that records of that treatment were no longer
available.
To date, only one letter has been received from Dr. Andaloro.
That letter, received by the RO in November 1992, notes that
the veteran was treated for essential hypertension in June
1980, but does not provide any information regarding
treatment for hypertension prior to that time. Records
received from Dr. Shields reflect that the veteran had a
history of right ear mastoid surgery as a child, but do not
appear to contain any medical opinions regarding whether the
condition was permanently or chronically worsened by service.
VA treatment records have also been received, but these
records likewise are devoid of any medical opinions linking
either the veteran’s death or the other claimed conditions to
service. The records from VA do not reflect treatment the
veteran testified he received subsequent to November 1992,
nor have any records been received relating to the
examination the veteran underwent in connection with his
post-service position with the New York State Police.
The appellant’s statements, together with statements and
testimony provided by the veteran, suggest that further
evidence may have existed at the time of the veteran’s death
which could demonstrate that hypertension was manifested to a
compensable degree within one year of the veteran’s
separation from service, 38 C.F.R. §§ 3.307, 3.309, 4.104,
Diagnostic Code 7101 (1996), or which could otherwise link
his death and his problems with defective hearing, a right
ear disorder, and hypertension to service. See, e.g., Caluza
v. Brown, 7 Vet.App. 498, 506 (1995), aff’d, 78 F.3d 604
(Fed. Cir. 1996). Although it is presently unclear whether
any of the referenced evidence pertaining to her claims for
accrued benefits can properly be considered to have been “in
the file at the date of death,” the Board finds, under the
circumstances here presented, that she should be notified of
the need to submit further evidence in order to make her
application for benefits complete. Further determinations
relating to whether such evidence can properly be deemed to
have been “in file” at the time of death can thereafter be
made based upon the nature of the evidence received.
38 C.F.R. § 19.9 (1996).
For the reasons stated, this case is REMANDED to the RO for
the following actions:
1. The RO should request the appellant
to provide the RO with information
regarding any evidence of current or
past treatment for the veteran’s
defective hearing, right ear disorder,
and cardiovascular problems that has not
already been made part of the record.
Based upon the information received from
the appellant, the RO should undertake
all reasonable efforts to ensure that
all evidence deemed to be “in the file
at the date of death,” is obtained for
review. In so doing, the RO should make
reasonable efforts to obtain any
additional, pertinent service department
records; reports of VA hospitalization;
reports of hospitalization, treatment,
or examination authorized by VA; reports
of autopsy made by VA on the date of
death; and hospital and examination
reports from military hospitals, state,
county, municipal, or other government
hospitals, or recognized private
institutions. The RO should in
particular make an attempt to obtain
copies of any pertinent VA medical
records relating to treatment the
veteran underwent subsequent to November
1992; the clinical records of treatment
from Dr. Andaloro; and a copy of the
veteran’s 1950’s New York State Police
employment examination.
2. The appellant should be advised that
she needs to submit competent medical
evidence demonstrating that her claims
are plausible. She should be advised
that the type of evidence needed to
satisfy this requirement may consist of
evidence showing that the veteran was
diagnosed with a chronic hearing
impairment, right ear disorder, or
hypertensive condition during service;
statements from treating physicians or
other health care providers indicating
the existence of a medical relationship
between the veteran’s death or his
problems with defective hearing, a right
ear disorder, and hypertension and
service; or evidence demonstrating that
the veteran’s sensorineural hearing loss
or hypertension was manifested to a
degree of 10 percent or more within one
year of his separation from service.
She should be given the opportunity to
submit a medical opinion or other
medical evidence from any physician or
other competent medical source regarding
the origin and etiology of the veteran’s
death and/or the claimed disabilities,
particularly whether they are in any way
attributable to service.
3. After the above development has been
completed, the RO should take
adjudicatory action on the appellant’s
claims of entitlement to service
connection for defective hearing, a
right ear disorder, and hypertension,
for purposes of accrued benefits, to
include consideration of whether the
claims are well-grounded. In this
regard, the RO should consider whether
any additional evidence submitted by the
appellant can properly be deemed to have
been “in file” as of the date of the
veteran’s death. In so doing, the RO
should consider and apply the most
favorable versions of the applicable VA
regulations and Manual provisions that
were in place during the pendency of the
appellant’s claim.
4. The RO should also take adjudicatory
action on the appellant’s claim of
entitlement to service connection for
the cause of the veteran’s death, to
include a determination on the question
of whether the claim is well-grounded.
If the claim is found to be well-
grounded, the RO should undertake any
additional development deemed necessary
to fulfill the duty to assist. See
Murphy v. Derwinski, 1 Vet.App. 78, 82
(1990); Gilbert v. Derwinski, 1 Vet.App.
49 (1990). This may include a review of
the claims folder by a qualified
physician in order to obtain a medical
opinion on the question of whether it is
at least as likely as not that a
service-related disease or injury was
the primary or contributory cause of the
veteran’s death.
If any benefit sought is denied, a supplemental statement of
the case should be issued. After the appellant and her
representative have been given an opportunity to respond to
the supplemental statement of the case, the claims folder
shall be returned to this Board for further appellate review.
No action is required by her until she receives further
notice. The purposes of this remand are to procure
clarifying data and to comply with the governing adjudicative
procedures. The Board intimates no opinion, either legal or
factual, as to the ultimate disposition of this appeal.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
MARK F. HALSEY
Acting Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1997) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual acting member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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